Rubin v. Girard Trust Company
| Decision Date | 27 January 1944 |
| Citation | 154 Pa.Super. 257,35 A.2d 601 |
| Parties | Rubin, Appellant, v. Girard Trust Company et al |
| Court | Pennsylvania Superior Court |
Argued October 4, 1943.
Appeals, Nos. 151 and 191, Oct. T. 1943, from judgments of C P. No. 1, Phila. Co., Dec. T. 1940, No. 3199, in case of Annie Rubin v. Girard Trust Company and J. M. Rogers.
Trespass for personal injuries. Before Crumlish, J.
Verdict for plaintiff against defendant landlord in sum of $ 2,500 and in favor of defendant contractor against plaintiff. Motion by defendant landlord for judgment n.o.v. granted. Judgment entered in favor of both defendants. Plaintiff appealed.
B Nathaniel Richter, for appellant.
Thomas E. Comber, Jr., with him Pepper, Bodine, Stokes & Schoch, for Girard Trust Co., appellee.
Oliver C. Riethmiller, for J. M. Rogers, appellee.
OPINION
The verdict was in favor of a tenant against her landlord for injuries allegedly sustained by reason of repairs negligently made. The jury exonerated the contractor who actually made them. The plaintiff filed a motion for new trial against the contractor. The landlord filed a motion for judgment n.o.v. The court entered judgment for both defendants. These appeals followed.
In December 1939 plaintiff, through her daughter, notified the Girard Trust Company, her landlord, that (1) the mortar and cement had been washed out from between the bricks at the rear of the house and that several bricks were missing so that there were holes "permitting the air to come right in the back of the house," (2) that the "steps [of the rear porch] were very loose and shakey," and (3) that "the platform at the top of the steps . . . had pulled away from the wall approximately an inch and a half or possibly two inches."
In January 1940, the landlord's maintenance man made an inspection. According to plaintiff's evidence, this inspection should have revealed not only that the wall required pointing with replacement of the missing bricks, but that the end of one of the wooden joists inserted into the wall to support the back porch was "practically rotting away, because I got hold of it with my hands and it crumbled when I squeezed it with my hands like this (indicating)," and that it had been in that condition for two or three years. (Testimony of Donald King, plaintiff's expert who examined the structure about two months after the accident happened).
The landlord, although under no obligation to do so, engaged Rogers, the additional defendant, to make repairs. But, instead of giving a carte blanche order to do whatever the contractor found necessary or specifying all the repairs which ultimately proved necessary, the work order was only to "point areaway, rear and return walls from ground to roof" and provided:
The work was completed February 2, 1940 and was inspected and approved by the landlord's maintenance man on March 19, 1940. It seems to be conceded all around that the joist had been pushed back in place, that the work had the appearance of satisfactory completion, that the porch seemed firm and safe, and that, with the joist back in place and the bricks and mortar replaced, the rotten end of the joist was not visible.
On March 21, 1940, plaintiff stepped on the platform or porch, the rotten joist gave way and suddenly pulled out from the wall for a distance of about two inches. As a result, plaintiff lost her balance, fell the full length of the steps and fractured her hip.
We start with two well-settled principles: (1) An undertaking by a landlord to make repairs, even though gratuitous, creates a liability for injuries to a tenant resulting from negligent performance (Theakston v. Kaszak, 152 Pa.Super. 576, 33 A.2d 46); (2) ordinarily, such undertaking or any part of it, may be delegated to a contractor for whose independent negligence the landlord will not be liable. Silveus v. Grossman, 307 Pa. 272, 161 A. 362; Miller v. Erie, 340 Pa. 177, 16 A.2d 37; Anderson v. Hays Mfg. Co., 207 Pa. 106, 56 A. 345; Martin v. Wentz, 145 Pa.Super. 424, 21 A.2d 444; Doerr v. Rand's 340 Pa. 183, 16 A.2d 377.
But, in the present case, the mistake the landlord made was to delegate to the contractor less than all...
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